Delhi Policy Group
DEC 2013
Failing Bangladesh:
Legislators Against the National Interest
Radha Kumar
Director General
Implementation of the 1974 India-Bangladesh Land Boundary
Agreement is in the interests of both India and Bangladesh,
because it will settle a longstanding dispute, create a viable
border and allow for the prevention of illegal cross-border
movement of peoples, goods and arms. Yet our Parliament has
blocked a Constitutional amendment (Number 119) that will
allow implementation. Do they have good reason or are they
neglecting the national interest?
Background
In 1947, the partition of India and the subsequent
demarcation of Indian and Pakistani borders by Cyril Radcliffe
left several unresolved issues in the eastern provinces of
Bengal and Assam. As the map below shows, the new border
stranded hundreds of Indian and East Pakistani enclaves deep
inside the two countries’ borders (the blue line is the original
border and the red line is the border awarded by Radcliffe). i
These enclaves are a product of pre-colonial treaties between
the Maharajah of Cooch Behar and the Nawab of Rangpur and
were maintained at the time of partition between India and
what was then East Pakistan in 1947.
1
Key Points
1. The LBA will benefit both India and
Bangladesh. By indefinitely delaying its
implementation, MPs neglect the national
interest;
2. Arguments against the Protocol are
specious: the Basic Structure doctrine does
not apply and the loss of land is notional: in
actual fact India will gain land;
3. Sheikh Hasina’s government has gone
out of its way to improve relations with
India: most importantly, it has extradited
some of India’s Most Wanted and cracked
down on insurgent and/or terrorist
sanctuaries;
4. India risks losing these gains given
Bangladesh goes to elections in early 2014:
if we cannot ratify an agreement with an
ally who has shown good faith time and
again, what message do we send to her
chief opponent, Khaleda Zia, who is far less
friendly to India?
5. The 119th Constitutional Amendment,
ratifying the Protocol, can be enacted in
this parliamentary session. Will our MPs
wake up to the national interest?
© Delhi Policy Group, 2013
Delhi Policy Group
The enclaves issue was and is a deeply emotive
one, touching as it does on statelessness for the
residents of the enclaves, and evoking the land
hunger which is prevalent in South Asia’s
largely agrarian population.
In 1974, shortly
after
the liberation of
Bangladesh, Prime Minister Indira Gandhi and
Bangladeshi premier Sheikh Mujibur Rahman
signed the India-Bangladesh Land Boundary
Agreement (LBA), under which the two
countries agreed to transfer these enclaves to
each
others’
sovereignty.
Though
the
Bangladesh legislature ratified the agreement
soon after, India’s legislature, preoccupied with
the Emergency of 1975, did not.
Implementation of the LBA was put on a back
burner
military
after
rule
Mujibur’s
in
assassination
Bangladesh.
The
Source: British Library
and
The Indian and Bangladeshi governments have
issue
resurfaced in 2009, after Sheikh Hasina won
already
the elections, as part of an effort to renew the
demarcation and exchange. Out of a total 1149
vision
Bangladeshi
Strip Maps to be prepared, 1114 Strip Maps for
independence. In September 2011, during
the agreed International Boundary have been
Prime Minister Manmohan Singh’s visit to
prepared and signed at the Plenipotentiary
Dhaka, the two Prime Ministers signed a
level. These were exchanged during External
Protocol to the Land Boundary Agreement that
Affairs Minister Salman Khurshid’s visit to
would enable its implementation.
Dhaka on 16-17 February 2013. The Ministry
that
had
infused
done
considerable
work
on
for External Affairs believes that the remaining
The 2011 Protocol settled the issues of:

Demarcation
of
undemarcated
35 strip maps for the International Boundary in
the area of “Territories in Adverse Possession”
land
and the undemarcated segments that were
segments (about 6.1 km);

settled through the 2011 Protocol can be signed
Exchange of enclaves (51 Bangladesh
after the Agreement is ratified by Parliament.
enclaves inside India comprising about
7,110.02 acres, and 111 Indian enclaves in
The 119th Amendment to the
Constitution
Bangladesh comprising about 17,160.63
acres) and;

Transfer of territories under Adverse
Possessions (2267.682 acres with India
Where does Parliament come in? Because the
and 2777.038 acres with Bangladesh).
LBA involves acquisition and transfer of
territory, an amendment to the First Schedule
of the Constitution under Article 368 is
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Delhi Policy Group
required for its implementation. This point was
finally be debated and passed in the current
made by the Division Bench of the Guwahati
winter session of Parliament.
High Court (June 15, 2012), while dealing with
What are the Objections?
a Public Interest Litigation challenging the
1974 Land Boundary Agreement and its 2011
Protocol. The judges noted that the Agreement
Despite allegations by opposition parties that
could be enforced only after an amendment to
they were not consulted, the External Affairs
the Constitution was enacted by Parliament.
Ministry provided detailed briefings to MPs
The Attorney General gave the same advice,
from the BJP, CPI (M), CPI, and Asom Gana
that a Constitutional amendment be sought.
Parishad (AGP) on the 2011 Protocol to the
LBA. A separate briefing session was also
Under Article 368 of the Indian Constitution,
arranged for MPs from the State of Assam in
“An amendment… may be initiated only by the
December 2012.
introduction of a bill for the purpose in either
house of Parliament, and when the bill is
The chief objections to the LBA and 2011
passed in each house by a majority of that
Protocol appear to be:
house and by a majority of not less than two1.
thirds of the members of that house present
It alters the “Basic Structure” of the
Constitution; and
and voting, it shall be presented to the
2. The states of Assam, Meghalaya and
President who shall give
his assent to the bill and
“As a means of promoting ties
thereupon
the
between the two countries, (I
Constitution shall stand
hope) this House and the lower
amended
House will have the wisdom to
in
accordance
with the terms of the bill”.
In
February
2013,
the
Cabinet approved a bill to
add the provisions of the
LBA and 2011 Protocol to
the First Schedule of the
Indian Constitution, “The
endorse
the
agreement
land
that
I
border
signed
peace
along
the
and
tranquility
borders
The Basic Structure
Argument
in
Bangladesh. This agreement will
ensure
Tripura stand to lose land.
with
Bangladesh and peace and order
in both countries.”
The “Basic Structure” argument
which opposition parties such as
the BJP are using to block the
2011 Protocol, and thereby the
implementation of the 1974 LBA,
119th Amendment to the
Prime Minister Singh in the Rajya
is that the Constitution fixes the
Constitution Bill”, and in
Sabha
territorial boundaries of India and
March 2013 Government
sought to introduce the
PTI, New Delhi, Mar 8, 2013
no alteration can be made, with
the caveat that India can acquire
Bill in Parliament. Despite Prime Minister
more territory but cannot cede any. This
Singh’s plea to the House, the Bill was not
argument does not, however, apply to disputed
debated. Subsequent efforts to introduce the
or un-demarcated portions of the border,
Bill were made in August 2013, when again it
where international boundaries are yet to be
was not tabled, and the hope was that it would
agreed. If it were to be applied it would mean
that we condemn our citizens to live with
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© Delhi Policy Group, 2013
Delhi Policy Group
unsettled borders in perpetuity, with all that
emergence of Bangladesh as an independent
follows – cross-border disputes, insurgency
country.
and smuggling. Surely few of our legislators
Bangladesh, a more sweeping settlement was
would choose this option?
sought by the 1974 LBA.
Moreover, here appear to be several legal
Constitutionally, the 9th Amendment sets
precedents against this interpretation of the
the precedent for the 119th Amendment.
“Basic Structure” argument, of which two are
Following the independence of
B. Tin Bigha
In the case of Tin Bigha in Assam, Article 1 (14)
given below:
of the LBA provides for leasing in perpetuity of
A. South Berubari
The Berubari dispute arose from an omission
the Tin Bigha area for access to the Angarpota
in the written text of the Radcliffe Award and
and Dahagram enclaves of Bangladesh as part
an erroneous depiction on the map annexed to
of the package on South Berubari. Further, the
it. Radcliffe divided the district of Jalpaiguri
terms of the lease of the Tin Bigha corridor
between India and Pakistan by awarding some
were eventually agreed upon through an
thanas to one country and others to the other
Exchange of Letters at the level of Foreign
country. The Radcliffe Award determined the
Ministers in 1982. Opposition to the 1974 and
border on the basis of the thana boundaries,
1982 Agreements from people in Kuchlibari,
but Radcliffe inadvertently omitted one thana,
Dhaprahat and Mekliganj led to three writ
Thana Boda. Berubari Union No. 12 lies within
petitions being filed in the Calcutta High Court
Jalpaiguri Thana, which was awarded to India.
challenging the 1982 Lease Agreement on
However, the omission of the Thana Boda and
various constitutional grounds.
the erroneous depiction on the map annexed to
arguments adduced by the petitioners were:
the award enabled Pakistan to claim that a part
1.
of Berubari belonged to it.
The main
The 1974 LBA and subsequent Tin Bigha
Lease Agreement were inconsistent with
the 1958 Nehru-Noon Agreement;
The dispute was resolved by the Nehru-Noon
2. Since the lease was in perpetuity, it
Agreement of 1958 under which half of
amounted to cession of Indian Territory;
Berubari Union No. 12 was to be given to
Pakistan and the other half, adjacent to India,
3. The provisions of the Lease Agreement
was to be retained by India. To implement the
resulted in a dilution of India’s sovereignty
Nehru-Noon Agreement, the Constitution 9th
over the leased area.
Amendment Act and Acquired Territories
(Merger) Act were adopted in 1960.
In September 1983, the Calcutta High Court
This
issued a judgement in which it disallowed all
legislation was challenged in the courts by a
series of writ petitions.
three petitions.
The Supreme Court
decision on March 29, 1971, finally cleared the
The Enclaves: a Loss of Land?
way, dismissing the objections to the two Acts,
but implementation was
delayed by the
Regional
Pakistani Army crackdown in East Pakistan
parties
such
as
the
Trinamool
Congress and AGP argue that the LBA and 2011
and subsequent events which led to the
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© Delhi Policy Group, 2013
Delhi Policy Group
Protocol will cause their states to lose land. In
shall be given the right of staying where they
fact, the land that they say they will lose is
are as nationals of the State to which the areas
already under Bangladeshi control, thus the
are transferred. Feedback from a visit jointly
exchange of enclaves converts a de facto reality
undertaken by an India-Bangladesh delegation
to a de jure one.
to
111 Indian enclaves with a
some
of
the
enclaves
and
adverse
total area of 17,160.63 acres in Bangladesh are
possessions in May 2007 revealed that the
to be transferred to Bangladesh, while 51
people
Bangladesh enclaves with an area of 7,110.02
Bangladesh and Bangladesh enclaves in India
acres in India are to be transferred to India. On
did not want to leave their land and would
paper, the exchange of enclaves between India
rather be in the country where they had lived
and Bangladesh may seem like a loss of Indian
all their lives.
land to Bangladesh, but on the ground each
residing
in
Indian
enclaves
in
Adverse Possessions: Gaining
Land
country already possesses the land. Moreover,
there is no way to reclaim the land, either
peacefully or by law. The Indian enclaves are
located deep inside Bangladesh and there has
While the loss of lands through the transfer of
hardly been any direct access to them from
enclaves is notional, India stands to actually
India since 1947. Similarly, Bangladesh has had
gain land in settling the adverse possessions
minimal, if any, access to its enclaves located
issue. In the implementation of the Protocol,
deep inside India. In effect, the exchange of
India will receive 2777.038 acres of land and
enclaves denotes only a notional exchange of
transfer 2267.682 acres of land to Bangladesh.
land.
Territories in Adverse Possession
S. No.
States
Territory to be transferred
to India (in acres)
Territory to be transferred
to Bangladesh (in acres)
1.
West Bengal
2398.05
1957.59
2.
Meghalaya
240.578
41.702
3.
Tripura
138.41
---
4.
Assam
---
268.39
Total
2777.038
2267.682
According to the MEA, a joint headcount was
The Humanitarian Issue
conducted from 14-17 July, 2011, which
determined that the total population in the
Due to their status as foreign citizens living in
enclaves was 51,549. In respect of enclaves, the
another country, with little access to the home
1974 LBA states that the people in these areas
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© Delhi Policy Group, 2013
Delhi Policy Group
country, residents of the enclaves could not
Advantages of the 2011 Protocol and 1974
enjoy full rights as citizens of either India or
Bangladesh and infrastructure facilities such as
LBA
electricity, schools and health services were
deficient. Further, due to lack of access to the
enclaves bylaw and order agencies and weak
property
rights,
certain
enclaves
became
hotbeds of criminal activity. According to the
Indian Government, a number of Parliament
Questions,
representations
from
MPs
(including BJP leaders), residents of the
enclaves, NGOs and political parties have over
the years urged Government to carry out an
expeditious exchange of enclaves. As an MEA
note
on
the
issue
states,
“In
the
implementation of the 2011 Protocol, the
exchange of enclaves will have fulfilled a major
humanitarian need to mitigate the hardships
that the residents of the enclaves have had to
endure for over six decades on account of the
lack of basic amenities and facilities that would
normally be expected from citizenship of a
1. As the Protocol is the outcome of bilateral
negotiations, it is mutually acceptable and durable;
2. It takes into consideration the situation on the
ground and the wishes of the people;
3. It takes into account the views of the concerned
State Governments and has their written consent;
4. The exchange of enclaves will mitigate major
humanitarian problems;
5. The settlement of Adverse Possessions will
contribute to tranquility and peace along the
border;
6. The Protocol provides for a comprehensive
package solution involving “give and take” on both
sides;
7. It represents a permanent solution to a decades
old issue;
8. The newly demarcated boundaries are a fixed
boundary, thereby adding to certainty regarding the
future;
State.”
9. A settled boundary reduces friction and promotes
confidence in building better relations.
With one caveat: Hindus in Bangladesh lack
10. It paves the way for closer engagement between
India and Bangladesh and the region;
the protections that they should have as a
minority. Land grabs under the “Enemy
Property” Act have continued since the creation
of East Pakistan and have not abated after
Bangladeshi independence, leading to a steady
stream of migrants into India and a sharp
decline
in
the
population
of
Hindu
Bangladeshis. Both the Bangladeshi and the
Indian governments would need to ensure that
a similar fate does not befall the residents of
the enclaves; indeed, with goodwill the two
11. A settlement will help on strategic concerns,
including security cooperation and denial of
sanctuary to elements inimical to India;
12. It will also help address issues of security
concern, including illegal migration, smuggling and
other crimes and denial of sanctuary to elements
inimical to India.
13. While land will be exchanged, the Protocol does
not envisage the displacement of populations;
14. The Protocol ensures that the India-Bangladesh
boundary is permanently settled and there should
be no more differences in interpretation, regardless
of the government in power.
governments could also address the issue of the
Hindu minority’s rights within Bangladesh so
as to prevent further migration.
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© Delhi Policy Group, 2013
Delhi Policy Group
development of an Inland Container Port
Pros and Cons of Adopting the
Constitution 119th Amendment
Act
at Ashuganj and a rail link between
Akhaura and Agartala (MOU was signed
on February 16, 2013).
The advantages of ratifying the 2011 Protocol
through
enacting
the
Constitution

119th
Bangladesh
has
also
worked
to
re-
establish a rail connection between India
Amendment Bill are manifold. The MEA lists
and Bangladesh (Chilahati-Haldibari and
14 (see box above).
Kulaura-Shahbazpur-Mahishashan)
to
and
enhance connectivity between India -
immeasurable good can be added. The current
Bangladesh and India-North East of India.
To
these
advantages,
a
further
Bangladesh Government, under PM Sheikh

Hasina, has reversed the long adversarial
In addition to these, it is expected that the
relations that had developed between the two
passage of the Bill
countries with the following measures:
ratification of the 1974 Land Boundary

subsequent
Agreement and its 2011 Protocol would
Bangladesh has taken steps to close down
allow Bangladesh to take several other
Indian Insurgent Group (IIG) camps
measures including approval for transfer
operating in the country, and has handed
of food grains to North Eastern India and
over most of the top IIG leaders.

and
other transit related measures.
Bangladesh has taken steps to dismantle
The ratification of the 2011 Protocol will allow
the
of
these gains to be consolidated and will
terrorism operating in the country. This
strengthen an ally as Bangladesh goes to the
has secured relative stability to Assam and
polls. It is not only Sheikh Hasina who will be
other North Eastern states of India.
strengthened by the ratification, though she
network
and
infrastructure
deserves full and sole credit for the vastly

Extradition
improved relations with India; the opposition
Treaty with India on January 28, 2013 and
too can play the same card. For Khaleda Zia the
extradited several top ULFA leaders to
question is a simple one: she too can support
India. It should be noted that the
improved relations with India, especially the
negotiations on an Extradition Treaty
operationalization of the LBA, as part of her
started as long ago as 1983 and has only
election campaign, unless she boycotts the
been concluded by the exercise of political
election, as is her present stand. Given the
will
uncertainty of elections in Bangladesh, and the
Bangladesh
by
the
concluded
current
an
Government
of
present state of turmoil in the country,
Bangladesh.
implementation of the LBA would have a

Bangladesh has worked with India to
confidence-building impact in Bangladesh. By
develop infrastructure for the movement
not ratifying the Protocol, therefore, we risk
of goods between the two countries and
certain cooperation for an uncertain future of
benefited the North East of India by
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© Delhi Policy Group, 2013
Delhi Policy Group
niggling bad faith relations with an important
winter session. But will our MPs wake up to
neighbor.
India’s
national
interest
and
pass
the
Constitution 119th Amendment Bill, which is, by
The Big Question
the way, supported by the three regional
governments
of
Assam,
Meghalaya
and
The big question is for Indian legislators. It is
Tripura? Or will they hold us hostage yet again
not too late: the Bill can still be enacted in the
to partisan politics?
Endnotes
i
Source: British Library,
http://www.bl.uk/reshelp/findhelpregion/asia/india/indianindependence/map2/large14214.html
The Delhi Policy Group
The Delhi Policy Group (DPG) is an independent think tank based in New Delhi, India. It seeks to
develop non-partisan consensus on issues of critical national interest.
The Delhi Policy Group focuses on three research areas: National Security, Peace and Conflict, and
Governance. Within this framework, the Delhi Policy Group holds conferences, Round Tables,
Working Groups and Task Forces.
The Delhi Policy Group publishes books, reports and issue/policy briefs. A list of publications is
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phone.
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© Delhi Policy Group, 2013